When deciding if a claim for constructive dismissal is discriminatory, the Employment Appeal Tribunal (EAT) has held in De Lacy v Wechseln Ltd (t/a The Andrew Hill Salon) that this will depend on whether earlier discriminatory acts sufficiently influenced the overall repudiatory breach in a case where the last straw was not a discriminatory act.
Ms de Lacy, a trainee hair stylist, found out that she was pregnant in May 2015 and informed her employer the same month. She went off on maternity leave in October 2015 and returned to work just under a year later.
She claimed that, from May to October 2015, her employer had engaged in a course of discriminatory conduct which continued on her return from maternity leave in August/September 2016. This culminated in a “last straw” on 17 January 2017 when she had been instructed, in front of other trainees, to clean up dog faeces, and had been laughed at. She resigned on 19 January 2017, claiming that, taken cumulatively, the conduct amounted to a repudiatory breach of the implied term of trust and confidence in her contract of employment.
She lodged tribunal claims of pregnancy, maternity and sex discrimination as well as claims of unfair dismissal arising from constructive dismissal.
The tribunal considered that two incidents - being given a fail in a practical test in May 2015 and being cold-shouldered by the principal after May 2015 – were, at first glance, discriminatory. However, the tribunal did not determine whether they were as it dismissed the claims of discrimination on the basis that they were lodged out of time and decided that it was not just and equitable to extend time.
With regard to her claim for constructive dismissal, the tribunal found that the two incidents together with the other acts amounted to a breach by her former employer of the implied term of trust and confidence, which she was entitled to treat as a repudiatory breach of her employment contract. This treatment culminated in the last straw incident on 17 January 2017.
Ms de Lacy appealed on the basis that once the tribunal had found that two of the incidents she had complained about were on the face of it discriminatory, it should then have required her former employer to prove otherwise. Assuming that the employer was not able to do that, this would have meant that the constructive dismissal would itself be discriminatory, bringing the discrimination claim within the time limit.
The EAT agreed that the tribunal should have decided first whether the two incidents amounted to sex discrimination and, if so, whether this meant that the constructive dismissal itself was unlawful sex discrimination. By failing to address these issues, it had fallen into a trap by concluding that because the discriminatory acts were not in time, there could be no discriminatory constructive dismissal.
In reaching its decision the EAT agreed with the judgment in Williams v Governing Body of Alderman Davies Church in Wales Primary School (weekly LELR 684) which said that a constructive dismissal could be discriminatory “if it is found that discriminatory conduct influenced the conduct that amounted to a repudiatory breach.” The fact that the last straw was not itself discriminatory did not automatically mean that the constructive dismissal was not discriminatory.
If the constructive dismissal was discriminatory, then the claim for discrimination would be in time, even though the events themselves were outside the primary limitation period.
The EAT remitted the case to the same tribunal to determine the two issues.
This is a helpful judgment. The fact the discriminatory acts were out of time for a stand-alone discrimination claim does not necessarily prevent a finding that a constructive dismissal was discriminatory. However, as the EAT recognised, whether the acts of discrimination sufficiently influenced the overall repudiatory breach to make the constructive dismissal discriminatory will depend on the facts of each case.